95 Kan. 742 | Kan. | 1915
The opinion of the court was delivered by
These two suits involve the same facts and have been submitted together. The plaintiff seeks to set aside deeds conveying to each of the defendants a valuable farm of 160 acres in Brown county, each deed retaining a life estate in the grantor. The defendants are nephews of plaintiff, sons of the plaintiff’s sister, Mrs. Elizabeth Stewart. At the time of the execution of the deeds, September 11, 1912, plaintiff was .past seventy years of age, unmarried, and had been living at the home of another sister, Mrs. Chase, and her husband in Hiawatha. For about a month he had been confined to his bed with sickness, and was under the care of a doctor and a nurse. The petition
The case involves nothing but facts which have been determined upon conflicting evidence against the plaintiff’s contention. There was evidence offered by defendants tending to show these facts: For a number of years plaintiff at different times had expressed an intention to give these farms to his nephews and had made several wills in which he had devised one farm to Richard and the other to Henry. He advised with different friends about making conveyances instead of relying upon a will. Several witnesses testified that he told them he was afraid his will would be contested, and that he preferred to make deeds. Doctor Emery had known the plaintiff about four years and had often visited him professionally. He saw the plaintiff every day during his sickness. The doctor testified that the plaintiff was suffering from bronchial asthma and complications attendant upon old age; that soon after he was taken sick he mentioned the matter of making these conveyances, and asked the doctor to tell George Davis to make out the deeds to the boys and bring them to the house for him to sign, and said that Davis knew all about it; that he said, “I want to do some business.”
“No one was present on the 11th when he told me to tell George Davis to come up. ... I saw Davis that morning, and delivered the message. I was to see Samuel again that day with Gilbert. He phoned me that he was ready to go up to Samuel’s at any time I was ready. I met him on the street and we went in my automobile.”
He further testified that there was no change in the condition of the plaintiff; that the plaintiff told him that he felt better and felt first rate. “In my judgment he was in better condition than I had seen him for several days. As to mentality he was normal.” He further testified that there was a suggestion made in the presence of the nurse that the plaintiff had some business with Mr. Gilbert, and she left the room; that Gilbert spoke to plaintiff about the deeds and said he had come for the purpose of having them acknowledged, and asked the plaintiff if he knew what they were for; that the plaintiff said “Yes” and asked Gilbert to read them to him; that Gilbert said, “do you know what that means,” and that plaintiff said, “Yes.” “Well, what does it mean ?” “It means this certain property is going to Richard.” The doctor further testified that at the time the plaintiff signed the deeds “he was undoubtedly mentally a competent man. . . . Seeing Gilbert had disappeared from his view beyond the threshold, he beckoned to me and I went over there, and
George Davis had been register of deeds and was an abstracter and had known Samuel for ten or twelve years intimately; had often written leases for him. He testified that the plaintiff had spoken to him about the land five or six years before in different conversations in which he said that he was going to have the Thomas boys given the land. The testimony of Davis is that when Doctor Emery told him that Samuel wanted to see him he went to Chase’s home and found Samuel in bed, and said: “Well, Uncle Tom, what you want. He said, Mr. Davis, you know the thing we have talked about several times . . . relating to my land. .- . . Well, he said, if you do any business for me this morning I want you to make me a promise. And I said, What will the promise be; and he said, I don’t want you to tell Mr. Smith anything about this business.” Smith was the man in whose office Davis-worked; that plaintiff took from under his pillow a notebook, which he handed to the witness and said:
“This is the land, I have written it here, that I want to put in the name of Richard Thomas, and this is the land I wish to put in the name, I think he called him Harry Thomas, and he had the description of the land. Gwynn is sometimes called Harry. He had the name of the boy and the description of the land that he wished to put in the name of each one; and he told me to copy that onto a paper, which I did, and then he asked me for the paper, and he took it and read it and handed it back, and said that was right. He was weak. He said he wanted to retain a life interest in this property ; and the deed was to be a warranty deed to these boys except his life estate. ... He said when you get those deeds completed you have Doctor Emery come down and take my acknowledgment. I said, Uncle Tom, I can’t do that, I am not a notary, and he said you have Gilbert conie with Doctor Emery to take my acknowledgment. I did not see or notice any mental weakness in Samuel that morning. His mind was' no different than several years previous. I prepared the*746 deeds. I then called Gilbert and told him he was to go with Doctor Emery to take the acknowledgment of Samuel. I gave the deeds to Gilbert after dinner. I had no communication on that date, or any other time, with reference to making these deeds with the parents of the boys. Never talked with them about it, nor they with me. Samuel told me previous to making these deeds that he had a will willing this to these boys, that he thought it would be more to his liking to make a deed to each, because he wanted to know absolutely himself that this land was going where he desired it to go. - He expressed a fear that Mr. Chase would break his will.”
After the deeds had been recorded and a notice of that fact published in the newspaper there was considerable comment in the neighborhood, and the old gentleman left the Chase home and went to live with the Thomases. There was evidence to the effect that he had voluntarily told a number of his friends at different times about the execution of the deeds and inquired if they had read about it in the paper and that he seemed to feel well pleased and proud of the gifts to his nephews. There is no question that he subsequently changed his mind, and he seems to have fallen out with the Thomases and returned to live with the other sister, Mrs. Chase. A few days after going to her home he brought this suit. There is a conflict in the evidence, and, as observed, there is nothing involved in the case but questions of fact.
It is insisted that the burden was on the defendants to show that the deeds were, obtained without undue influence. There was, however, no evidence of any fiduciary relation existing between plaintiff and the defendants, nor evidence to show that their parents influenced him at the time the deeds were executed, although he does testify that Mrs. Thomas, the mother of the defendants, was and had been for some years continually “pounding at him,” to convey the land to her sons.
